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Jewish World Review Oct. 29, 2007 /17 Mar-Cheshvan 5768 Is the bank holding Mom's assets captive? By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: Our father died three years ago and, to protect our mother, who has little experience in the business world, his will says that all of his assets (including the family home) go into a trust for our mother's benefit. During her life, the trustee (Dad appointed a bank) is supposed to pay our mother all of the income from the trust and, in addition, give her the greater of 5 percent or $5,000 each year. At her death, the bank trustee is supposed to distribute all remaining assets to my two sisters and me. My mother has nothing in her name other than an older-model car and a checking account where her Social Security is deposited. Here are our concerns: The family home is worth $300,000, and the liquid assets that went in the trust were $500,000. The bank trust department is taking a fee of 2-1/2 percent per year on the total $800,000, even though the $300,000 house produces no income. So, right off the bat, $7,500 that we think should come to our mother is being kept by the bank. Also, the investments made by the bank trustee are, for the most part, mutual funds bearing the bank's logo that have not done that well over the past three years. After trustee's fees and other expenses, our mother has been receiving less than $5,000 per year, which is not enough for her to live on, and the total value of the trust is less than it was three years ago. My sisters and I have set four meetings with the trustee, and each time we see someone different because of "turnover," as the bank puts it. We don't think we are getting proper service and don't want to spend a lot of money because we are told that if we sue, the bank will pay lawyer's fees to defend itself from the trust. My family feels like it is a captive of this large bank. A: While we don't know when your father's will was prepared, one may assume either he had a long relationship with the bank or a predecessor of the bank named as trustee, or that your father never met with the trustee but made the appointment based upon the advice of his lawyer or certified public accountant. Big mistake! Based on our research, large bank trust departments are not really interested in taking on trusts with less than $1 million in liquid assets, and some have minimums as high as $2 million. At the same time, however, based on statistics we have found, the average trust today is less than $250,000. Therefore, the liquid assets of these smaller trusts are generally invested in common pools of securities or mutual funds that do not require individual attention — or so thinks the trust officer who may be handling a hundred or more trusts like your father's. Most trusts in existence today are created by word-processing programs containing clauses that give trustees significant latitude in making investments, and leave fees to the trustee's posted compensation rates. In other words, "one size fits all." However, complaints by beneficiaries about shoddy treatment and poor performance by trustees have increased. First and foremost, we believe that there is a conflict of interest where the trust side of the bank (which is charging a fee) invests trust funds on the investment side of the bank (where additional fees are charged). In fact, there are a number of lawsuits pending today about this very issue. Taking the NextStep: Because of space limitations, we will continue the answer to this question in next week's column, with some possible solutions to your family's dilemma. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2007, Jan Warner

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